Frenemies of the Court: The Many Faces of Amicus Curiae

Helen A. Anderson *

Ask any lawyer what an “amicus curiae” is, and you will be told that the term means “friend of the court.” The term has positive, even warm, connotations. Amicus briefs provide additional information or perspectives to assist courts in deciding issues of public importance. Interest groups, law professors, and politically engaged lawyers are happy to participate in important cases through such briefs. Amicus curiae participation is defended as democratic input into what is otherwise not a democratic branch of government.

Read more

Does the Presumption of Validity Matter? An Experimental Assessment

Jeremy W. Bock*

“We don’t know exactly how often the presumption makes a difference to a case outcome.”

In patent law, the presumption of validity exerts a profound influence on litigation strategy. It has attracted criticism—not only from academics but also from at least one federal judge—for making weak patents difficult to invalidate. When mentioned to the jury, the presumption is perceived by litigants as exerting a powerful pro-patentee influence that overshadows its nominal procedural function of assigning the burden of proving invalidity.

Read more

The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech

Margot E. Kaminski*
Shane Witnov**

Intellectual inquiry has long been a private activity, protected by norms, laws, and physical constraints. Librarians have shielded readers’ records; states have passed reader privacy laws; and printed books do not track your favorite passages unless you underline them. But the advent of the search engine, public video platforms, and the e-book have resulted in a drastic reduction in the normative and structural constraints that once protected the privacy of our intellectual endeavors.

Read more

Testing Sex

Rachel Rebouché*

A revolution has happened in prenatal testing. Ushering in this change is a new prenatal test that relies on a simple blood sample collected from a pregnant woman. From the beginning of pregnancy, cell-free fetal DNA travels across the placental lining into the mother’s bloodstream, increasing in quantity as the pregnancy progresses. Potential parents can test that DNA for chromosomal abnormalities and for fetal sex after ten weeks of gestation, which is several weeks before a reliable ultrasound and seven weeks before an amniocentesis can be performed. As numerous newspaper and popular media articles report, what women can discover during their pregnancies will continue to evolve dramatically over the next ten years. This new non-invasive prenatal test (“NIPT”), coupled with advances in gene sequencing, could give parents information about all manner of traits, disorders, and propensities—from susceptibility to serious diseases, such as cancer and heart disease, to superficial traits, such as hair and eye color. The test is easy to perform, close to 100% accurate for fetal sex, and currently in clinical and commercial use.

Read more

Same-Sex Marriage and Due Process Traditionalism

Ronald Turner*

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide that the federal and state governments shall not deprive persons of life, liberty, or property without due process of law. More than a guarantee of procedural due process, it is now well settled that a “substantive component” of the clauses protects “individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’” Government cannot “infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Substantive due process law and doctrine are thus established (but, for some, controversial) features of constitutional law. In a recent ruling, the Sixth Circuit rejected a challenge to anti-same-sex marriage laws and held, among other things, that the Due Process Clause did not provide or protect a fundamental right to marry a person of the same sex.

Read more

Danger in the DMCA Safe Harbors: The Need to Narrow What Constitutes Red Flag Knowledge

Hank Fisher*

In 1998 Congress enacted the Digital Millennium Copyright Act (“DMCA”) in order to “provide certainty for copyright owners and Internet service providers with respect to copyright infringement liability online.” The DMCA safe harbors protect Internet and online service providers such as YouTube from secondary copyright infringement liability. The DMCA, however, does not provide full protection as certain caveats greatly reduce the safe harbor protection, disqualifying a service provider from protection if it is “aware of facts or circumstances from which infringing activity is apparent.” Courts and commentators refer to this level of awareness as “red flag” knowledge. If the service provider obtains red flag knowledge of infringing activity, it must act “expeditiously to remove, or disable access to, the material,” or be subject to liability. As the DMCA currently stands, the red flag knowledge provision constricts safe harbor protection to the point where online service providers are being held liable when they have actively attempted to comply with the statute. Because compliance with the law in its current form is so difficult, the open accessibility of video-sharing websites is in jeopardy.

Read more